Citation Nr: 1105408
Decision Date: 02/09/11 Archive Date: 02/18/11
DOCKET NO. 10-43 365 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Legal entitlement to one-time payment from the Filipino Veterans
Equity Compensation Fund.
ATTORNEY FOR THE BOARD
Helena M. Walker, Associate Counsel
INTRODUCTION
The appellant contends he had recognized guerilla service.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal of a January 2010 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Manila, the
Republic of the Philippines.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The United States Court of Appeals for the Federal Circuit held
in Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) that, in the
context of a Dependency and Indemnity Compensation claim, where
service department certification of an appellant's active service
is required, an appellant is entitled to submit and receive
consideration of new evidence concerning such service by the
relevant service department. The Federal Circuit in Capellan
held that it was a violation of VA's duty to assist not to
request service department review of additional or new documents
or evidence provided by an appellant concerning a Veteran's
active service after the initial service department
certification. See Capellan, 539 F.3d at 1380-81. The Federal
Circuit further held that "the correct interpretation of the
governing statues and regulations requires that a claimant's new
evidence be submitted and considered in connection with a request
for 'verification of service from the service department'
pursuant to 38 C.F.R. § 3.203(c)." Id.
The appellant here submitted service documents to the RO, and in
March 2010, the RO submitted all additional documents to the NPRC
to determine whether a change in the prior negative certification
of guerilla service (November 2009) was warranted. In a response
received in September 2010, the NPRC again found that the
appellant did not have service as a member of the Philippine
Commonwealth Army, including the recognized guerrillas in the
service of the United States Armed Forces. The appellant has
recently submitted a document received in January 2011 purporting
to show he had the requisite guerilla service for entitlement to
a one-time payment from the Filipino Veterans Equity Compensation
Fund. This document appears to be orders for the appellant to be
inducted to the guerilla forces of the Commonwealth of the
Philippines, and was assigned to "L" Co 3 Bn 71st Regt ECLGA.
The Board finds that Capellan is equally applicable to the
appellant's claim. Although previous documents were submitted to
the service department, there is no indication that the recently
received documents at issue in this case were included in any
request to the service department for verification of the
appellant's service. The Board consequently finds, in light of
Capellan, that remand of the case is required to ensure that
these recently received records have been considered.
In addition, review of the record shows that the appellant was
not provided with 38 U.S.C.A. § 5103(a)-compliant notice as to
his claim for a one-time payment from the Filipino Veterans
Equity Compensation Fund.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2010).
Expedited handling is requested.)
1. The RO/AMC should provide the appellant
with notice which complies with 38 U.S.C.A. §
5103(a) as to his claim of legal entitlement
to one-time payment from the Filipino
Veterans Equity Compensation Fund.
2. The RO/AMC should contact the service
department and seek verification of the
appellant's claimed active service in the
U.S. Armed Forces in the Far East in World
War II. In connection with this request, the
RO/AMC should provide the service department
with copies of any relevant records in the
claims files, to specifically include the
recently received copy of orders of induction
into the guerilla forces, and any other
documents on file addressing the appellant's
service in World War II.
3. When the development requested has been
completed, the case should be reviewed on the
basis of the additional evidence. If the
benefits sought are not granted, the
appellant should be furnished a Supplemental
Statement of the Case, and be afforded a
reasonable opportunity to respond before the
record is returned to the Board for further
review.
The purpose of this REMAND is to obtain additional evidentiary
and procedural development and the Board, at this time, does not
intimate any opinion as to the merits of the case, either
favorable or unfavorable. The appellant is free to submit any
additional evidence and/or argument he desires to have considered
in connection with his current appeal. No action is required of
the appellant until he is notified.
This claim must be afforded expeditious treatment. The law
requires that all claims remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2010).
_________________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).